Will the planned amendment to the Communicable Diseases Prevention and Control Act (NETS) lay the foundation for a totalitarian state? No, it will not. However, it also fails to help us move closer to a clearer, more surefooted legal order, jurist Paloma Krõõt Tupay writes.
The Riigikogu is processing yet another amendment to the Communicable Diseases Prevention and Control Act (NETS). At the same time, people are gathering in the street to protest what they see as a police state. I receive an email from my mother asking me to explain the situation to her as someone who has studied law.
This prompted me to study the new NETS amendment and its explanatory memo in order to get a better understanding of the situation.
Let it be said right away that the amendment is a complex one. In order to better understand its effect and interaction with other acts, I consulted with legal expert colleagues. An ordinary person does not have (free) lawyers at their disposal they can ask professional questions about public administration. That is why public opinion depends on the way politicians explain the nature of the planned change.
Martin Helme has said the following: "The bill is one for a police state and tyranny." A press release by Conservative People's Party (EKRE) MPs read: "MP and lawyer Kert Kingo finds that the government has introduced a bill to lay down totalitarian control."
Minister of the Interior Kristian Jaani (Center) parries and suggests criticism is baseless. "The level of scaremongering surrounding the Communicable Diseases Prevention and Control Act (NETS) amendments is frankly baffling. It is sad." Other members of the government seem preoccupied with different matters.
The interior minister claims that the aim of the amendment is to streamline inter-agency cooperation for more effective solving of healthcare crises in the future. Claims according to which the bill aims to give the Police and Border Guard Board (PPA) and the Health Board sweeping powers are supposedly false as both agencies already have relevant powers.
It is true that monitoring of compliance with measures aimed at combating dangerous infectious diseases (wearing of masks, restrictions on movement and assembly, the so-called 2+2 rule etc.) has been and will in the future be handled by the Health Board.
The latter is already within its rights to call on the police to help it perform these tasks. The process is called professional assistance. The law states that one agency (such as the Health Board) can ask another agency (for example the PPA) to help it perform its tasks.
Professional assistance requests currently need to be presented in writing and the form and goal of assistance clearly detailed. This seemingly bureaucratic requirement has a point.
Because public authority cannot act arbitrarily, the agreement serves as a clear basis for the agency asked for help to become active. The amendment in question would allow the Health Board to involve the police in control of communicable diseases not based on legislation but rather government-level regulation.
It is also true that the Health Board already has the right to enter premises against the owner's will if it is necessitated by failure to comply with disease control measures. It is to be believed that to exercise this right, the board would call on the police also today. (It seems unlikely for a Health Board official to leave their desk equipped with a pen and a coffee mug and demand to be let into the neighboring building.)
And to be perfectly honest, the police already have the right to enter people's homes even without a corresponding request for assistance should the threat level or severity of violations call for it. The amendment would include this right directly in NETS.
We might ask why amend the supervision provisions at all in a situation where they are largely organizational? The problem lies in lack of legal clarity of restrictions aimed at controlling infectious diseases and cooperation between agencies.
Having to wear a mask and other such obligations could be described as so-called originative norms. Such legal norms, including, for example, the Penal Code and internal regulations of prisons that are laid down with a justice ministry regulation, cover universal behavioral obligations.
One would expect nationwide disease control measures, such as having to wear a mask and restrictions on movement to constitute just such norms. Were this the case, we could give the police necessary supervision powers as one of their tasks is to ward off threats to public order. Behavioral obligations placed on citizens by the state through legal norms constitute a part of that public order.
However, the legislator has previously decided that all government and Health Board precepts and restrictions aimed at control of infectious diseases are administrative acts, meaning they are so-called individual legal acts, similar to building permits or fines for speeding.
That is one of the reasons why the role of the police in combating infectious diseases has remained muddy. Unfortunately, the legislator has offered no precise legal analysis or justification as to why disease control measures constitute administrative acts (at least not in the texts of corresponding amendments).
Were these precepts legal norms, they would be subject to control by the justice chancellor. However, in the current situation, an individual has no other option but to turn to administrative court for every individual act by the government or the Health Board. That would be the beginning of a long and arduous road eventually leading all the way to the Supreme Court.
It also pays to keep in mind that unlike legal norms, individual acts also have a 30-day limitation period on challenges. This entails the risk of the challenge period having passed by the time the severity of restrictions causes the person to turn to court. There is no explanation provided on the possible use of legal remedies.
Systematic approach to legislative drafting there for a reason
These words may come off pedantic and overly formal. However, the law, its creation and implementation are not goals in themselves. The often disturbingly strict structure of legislative drafting serves a purpose. The purpose of creating a maximally secure and stable basis on which a system of rules of cohabitation could be ensured alongside universal right to effective legal protection.
The legislator's unwillingness to engage in legislation based on thorough legal analysis and carefully considered concepts (as opposed to ad hoc political activism) only creates new amendments and obscurity. This observation goes beyond matters of the coronavirus. Mounting amendments work to deepen uncertainty and have to be amended in turn in the future.
It is also true that the amendment in question aims to hike various fine amounts and add circumstances under which a person can be fined. If a person can currently only be fined for violating quarantine requirements they have been ordered to observe, violating general rules put in place to combat epidemics will also serve as grounds for fines in the future.
In other words, for failure to wear a mask or keep their distance from others. Corresponding restrictions would be laid down by the government or the Health Board as administrative acts, with both reserving the right to choose from a wide range of possible measures.
The list of measures will be completed with one completely new item: the right to detain and take home a person who fails to comply with disease control requirements. (The police can technically already do that today.)
The interior minister has said in this context that 92 percent of Estonians trust the police. While it is great such a big part of Estonians trusts the police – I also have reason to – broad-based public support cannot serve as the reason for giving the police broader powers.
But the interior minister is right to suggest that the police must strictly adhere to the principle of proportionality when discharging their various tasks, both now and in the future. This means that before they can fine, detain and use force on people, the police must first exhaust all manner of more lenient measures with which to remedy the situation, including raising awareness, urging people to comply and issuing warnings etc.
Ordering the maximum fine amount right away is not considered to be the moderate approach. The principle of proportionality also means that the position according to which the police can be given additional powers because they seldom use existing ones is wrong.
No goal can be noble and inviolable enough to be beyond criticism in terms of how it restricts freedoms by citizens and politicians. However, we are also jeopardizing the rule of law when we take advantage of complicated situations to fan mistrust and fear. It is the responsibility of public authority to explain its decisions and create clarity.
In summary. Will the planned NETS amendment lay the foundation for a totalitarian order? No, it will not. However, it also fails to help us move closer to a clearer, more surefooted legal order.
Above all, the situation today speaks of one thing. That we have lost the desire (and ability?) to discuss things, while both the law and politics feed off a competition of the best and brightest ideas and know-how. There is no such thing as an infallible decision, while there exists a compromise born out of the competition of the wisest positions. This requires the ability to listen to the other side. Otherwise, both jurisprudence and politics are looking at becoming brain-dead.
Editor: Marcus Turovski